Tuesday, October 31, 2023
This blog post is crossposted with permission from the Reproductive Rights Law Profs Blog.
By Hannah Filippino and Benita von Lilienfeld-Berry, Law Students in CUNY Law School's Human Rights & Gender Justice Clinic
Earlier this month, the United Nations Human Rights Committee (“HRC”) reviewed the U.S.’ performance under one of the only three international human rights treaties that the U.S. has ratified: the International Covenant on Civil & Political Rights (“ICCPR”). As expected during the two-day review, the HRC members grilled the U.S. on the impact that the Supreme Court case Dobbs v. Jackson has had on access to abortion, but they also asked tough questions about other reproductive justice issues, including the U.S.’s failure to address maternal mortality and the improper separation of families by Child Protective Services.
To ensure that HRC members were fully informed of ICCPR violations in the U.S., civil society members submitted over 70 reports and sent 150 human rights lawyers and activists to attend the review. Through CUNY Law School’s Human Rights & Gender Justice Clinic, we attended the review as part of civil society and submitted a shadow report with If/When/How, Pregnancy Justice, the Center for Reproductive Rights, Birthmark Doula Collective, Changing Woman Initiative, and We Testify. The report highlights the ways in which abortion, miscarriage, and pregnancy outcomes are criminalized in the U.S. in violation of multiple rights protected under the ICCPR, including the rights to life, non-discrimination, equal protection before the law, freedom from cruel, inhuman, and degrading treatment or torture, as well as health care privacy (Art. 6, 7, 17, 2, 3, 26). Several other organizations also submitted separate reports focusing on abortion access and maternal mortality.
During the review, Serbian Committee Member (“CM”) Tijana Šurlan made maternal mortality and reproductive rights one of her primary concerns. She emphasized that the U.S. must adopt positive measures to both reduce maternal mortality and ensure abortion access to protect pregnant people’s rights to health and life. Noting the disproportionately high rates of maternal mortality in Black, Indigenous, and Native Hawaiians and other Pacific Islander communities, she asked what measures the U.S. is undertaking to improve health care for these vulnerable groups. She also framed decriminalizing religious and cultural midwifery as a pivotal piece of reducing the U.S.’ maternal mortality rate, which is the highest among wealthy countries.
CM Šurlan described the Dobbs cases as a serious retrogression after five decades of protection for sexual and reproductive health rights established since Roe v. Wade. French CM Hélène Tigroudja also focused on the criminalization of abortion and asked President Biden’s delegation to describe tangible, precise measures that the U.S. has taken to reduce the criminalization of abortion providers, seekers, and their helpers in light of the World Health Organization’s (“WHO”) 2022 Abortion Care Guidelines. In doing so, she emphasized that the right to choose pregnancy requires safe and legal abortions under the ICCPR rights to life, non-discrimination, and freedom from cruel, inhuman, and degrading treatment or torture. CM Tigroudja also expressed concern about State data surveillance being weaponized to criminalize abortion. She further highlighted that since Dobbs, pregnant people that either receive abortive care or are forced to carry their pregnancies to term have been discriminated against and are suffering physically and psychologically as a result.
CM Šurlan asked the U.S. to clarify what remedies are in place for people who are forced to carry their pregnancies to term, as well as for those who suffer from severe health problems from unsafe abortions. She also asked about the possible creation of a federal statutory right to abortion through legislation like the Women’s Health Protection Act. Chilean CM Hernán Quezada Cabrera expressed concern about how Child Protective Services uses behavior during pregnancy as a basis to separate families and even arrest parents instead of undertaking measures to help families and alleviate poverty. He alluded to the ways that this criminalization of pregnancy relates to racist family separations by Child Protective Services, which were also criticized when the U.S. was reviewed for its compliance with the Convention on the Elimination of All Forms of Racial Discrimination in 2022.
While the government delegates agreed that the Dobbs decision has caused serious human rights violations, they failed to directly address state laws banning or severely restricting abortion access in response to the HRC’s questions. Instead, the government representatives discussed enforcing federal laws that safeguard private health care information, require health care treatment in emergencies, and prohibit threats and violence at clinics. The Special Assistant to the President for Democracy and Civic Participation at the White House, Justin Vail, emphasized that the right to choose is fundamental, but, other than noting the executive orders enforcing federal laws, he only stated that the federal government is trying to pass laws to restore Roe protections.
The sole state-level delegation member, Attorney General Aaron Ford of Nevada, described efforts to protect abortion rights in his state. However, Nevada is only one of fifty states, and it is also the only state that explicitly criminalizes self-managed abortion.
Ultimately, the Biden delegation relied on federalism to avoid accountability for our nation’s violations of the ICCPR. In doing so, the Biden delegation continued the U.S.’ longstanding history of ignoring its obligations to adhere to international treaties like the ICCPR as “The Supreme Law of the Land” under the Constitution.
The HRC is expected to release its formal concluding observations on November 3.